Discrimination in the workplace does more than destroy employee morale – it can lead to government investigations, lawsuits, and significant awards of monetary damages for victims. Federal and state law prohibit discrimination in the workplace based on race or skin color, national origin, genetic information, gender or pregnancy, religion, disability, and age (over 40).[1] To prevent discrimination in the workplace, you must develop a clear and comprehensive policy addressing unlawful discrimination and make sure all employees – especially supervisors – understand the types of conduct that are prohibited and the consequences of engaging in that conduct.

Steps

Part 1

Educating Employees

1

Provide up-to-date employee handbooks and orientation for new employees. New-hire training is crucial to start employees off on the right foot with a clear understanding of the types of behavior that won't be tolerated in the workplace.

With a written handbook of all policies, including discrimination policies, you can be confident that every employee receives the same information regarding the rules of the workplace and what you expect from employees.[2]

Your employees also should understand that the information contained in the handbook supersedes anything a supervisor or other employee might tell them. Regardless of any exceptions that are made, or conduct one employee might be able to "get away with," the company's policy remains unchanged.

2

Require continuing education and training. Keep your employees current on any changes in the law, and give them a refresher on prohibited conduct and your company's policy for reporting discrimination in the workplace.

The U.S. Equal Employment Opportunity Commission enforces a number of federal laws that prohibit discrimination in the workplace. You may be able to get an EEOC representative to come to your workplace and provide an overview of federal law and the process of filing a charge with the EEOC.[3]

3

Have regular employee meetings. Being able to communicate with your staff and discuss issues can keep minor problems from escalating.

If you've had several complaints regarding the same employee or the same type of conduct, it also can help to discuss the issue with all employees together in a group setting. In this way, you can avoid singling anyone out while at the same time sending the message that the behavior will not be tolerated.

For example, suppose a group of male employees get together for happy hour at a nearby exotic dancing club. The group frequently discusses their exploits the next morning at work, and several female employees have complained they find the discussion offensive and discriminatory. Upon talking to the men, however, you learn that they were unaware anyone else could hear their conversations. This would be an opportunity to call an employee meeting and make sure everyone is aware of what sorts of conversations are inappropriate in the workplace under any circumstances.

4

Make materials readily available. The EEOC has posters, brochures and other materials that you can keep in employee break rooms.

Part 2

Creating an Anti-Discrimination Policy

1

Include a statement of commitment. A strong statement affirming the company's stance against discrimination can set the tone for the rest of the policy and assure employees that complaints will be taken seriously.[4]

Generally, preface your policy with a statement that your company has no tolerance for discriminatory or abusive behavior in the workplace. State up front that all employees have the right to work in an environment that is free of harassment and discrimination.[5]

Your written policy can serve as a defense against certain types of complaints, such as allegations that your workplace is a hostile work environment. The existence of the policy can provide evidence that you took reasonable care to ensure your workplace was free of discrimination.[6]

A written policy also demonstrates that you made a good-faith effort to prevent discrimination. In the event of a lawsuit, evidence of your good-faith effort can be used to avoid punitive damages, which the court can impose to punish employers for allowing unlawful discrimination to occur.[7]

2

Explain who the policy protects. A list of characteristics protected by state and federal law enables all employees to understand types of unlawful discrimination.

To determine all classifications protected, you'll have to research your state's law as well as federal discrimination laws. State laws may go beyond federal law to protect characteristics such as sexual orientation that aren't covered under federal law.[8]

At the end of your list or protected characteristics, you should consider adding a phrase that includes any other characteristics added to state or federal law in the future.[9] This way if a new law is passed your policy remains up to date.

3

Describe conduct prohibited under the policy. In addition to a list of conduct that constitutes discrimination, examples can help employees further understand what isn't allowed in the workplace.

Make sure employees understand everyone is being held to the same standard, and discriminatory conduct will not be tolerated from anyone, regardless of their rank or position in the company.[10]

Provide a general description of how employee conduct is considered discriminatory, so employees have a basic standard by which to evaluate their behavior.

As much as possible, provide actual examples of conduct that would be considered prohibited.[11] Many potentially discriminatory acts, such as displaying a sexist cartoon, having a calendar with scantily clad women, or telling a joke, could be seen as harmless fun by some employees.

Make it explicit in your policy that statements such as "it was just a joke" or "I didn't mean to offend anyone" are not defenses to discriminatory conduct.

Let employees know that if they have any doubts as to whether something might be offensive, it's better to err on the side of caution and leave it out of the workplace.

Be sure to include a statement that the examples you provided are not an exhaustive list.[12]

The procedure should be straightforward and not require employees to jump through hoops to have their complaint heard and acted upon.

Where possible, provide deadlines by which the employee will have some sort of response, if not resolution, to issues they report. Include options available to alleviate the situation while the report is being investigated. For example, you may allow an employee experiencing discrimination to request a transfer to another shift or department.

Emphasize that all parties will be heard during the investigation, and no action will be taken to discipline an employee without evidence that he or she violated the anti-discrimination policy.

5

Specify consequences for engaging in prohibited conduct. Include disciplinary action that will be taken against employees who unlawfully discriminate against others, up to and including termination.

For example, you may choose to go with a "three strikes and you're out" sort of policy, in which penalties escalate on the second occurrence of discriminatory conduct for an employee, and a third occurrence results in termination.

However, keep in mind that for some particularly egregious violations, immediate termination may be the only appropriate sanction.[14] For example, if a female employee files a report that a male employee locked her in the supply closet and fondled her, if your investigation proves the report was accurate, the male employee should not be allowed to remain on staff.

You might also want to include penalties for false or frivolous allegations against other employees. This sends a signal to your employees that they will be treated fairly, and that if someone falsely accuses them of discrimination out of spite or for personal reasons, that person will be disciplined.

Make it clear that retaliation against employees who report discrimination is prohibited by law, and that retaliatory conduct will be subject to the same disciplinary sanctions as discriminatory conduct.[15]

Part 3

Handling Discrimination Complaints

1

Designate more than one person to handle complaints. Employees should have several people in the company to whom they can potentially take their complaints so they can talk to someone they trust.

This is particularly important if an employee has a complaint against a manager, and that manager is tasked with handling complaints. Additionally, you may want to think about designating someone outside the company, especially if you have a family company in which most of the supervisory employees are related.

2

Display your complaint procedure prominently. Having specifics available where employees can easily access them ensures everyone knows what to do if they witness discriminatory conduct.

Employees may be anxious about filing a complaint, especially against a superior, for fear of "rocking the boat." Posting the procedure out in the open can reassure nervous employees that the procedure is considered a normal part of doing business and that their complaints will be handled with professionalism and respect.

3

Investigate complaints promptly. Looking into a complaint as soon as possible after it's filed sends a message to employees that you take complaints seriously.

Employee reports can provide your company with advance notice of any potentially serious problems, enabling you to take action before the situation escalates to a lawsuit as well as providing the company with defenses in the event a lawsuit is filed.[16]

Stepping in and handling complaints quickly can ease tensions and increase employees' confidence in their company.[17]

Keep in mind you won't always have to launch a full-blown investigation to get to the bottom of the matter and resolve the situation.[18] Many times, the complaint may be a matter of a misunderstanding, or the person may not have been aware that his or her actions were bothering anyone. In those situations, talking to the parties involved and getting assurances that the situation won't happen again is all that is necessary.

Handle all complaints the same, regardless of the employee accused of discriminatory conduct.[19] Your employees will notice if you seem to be playing favorites because you take longer to look into an issue with one person while bringing the hammer down on someone else.

Even if you think the complaint is silly, or that the person shouldn't have been offended by the conduct, avoid making the person feel like he or she made a mistake by filing a report at all. It doesn't matter that you don't feel discriminated against, it only matters that the complaining employee does.

For example, you may have an employee who enjoys reading men's magazines on his lunch break – magazines that often feature women on the cover and within the pages in various stages of undress. While his lunchtime reading material doesn't bother you personally, other employees may be bothered by this. If someone complains, the issue probably can be remedied simply by informing the employee that if he wants to read men's magazines at lunch, he'll have to take his lunch off premises. However, this solution may become unavailable if the conduct continues long after the complaint is filed without any action being taken.

4

Keep written records. Taking notes as you interview employees regarding complaints ensures a complete record of actions taken to investigate and resolve the situation.

Get details from the employee who filed the complaint, the employee against whom the complaint was filed, and any witnesses to the conduct at issue. When you've finished an interview, read your notes back to the employee you interviewed to make sure you've recorded their statement correctly.[20]

If the complaint alleges discriminatory conduct of which there is a record, such as sexual innuendo in an email exchange, get copies of the documents that form the basis of the complaint and include those copies in the same file as the complaint and your interview notes.[21]

You also should keep detailed notes on the steps of the investigation and any actions you take as a result. Keep a running log with the dates and times of each action taken on the case, and make a note of any additional records available to document that action.[22]

Keep all notes and documents related to the incident in a single file. This could become important if the situation escalates or the complaining employee reports the incident to a state or federal agency.[23]

5

Protect confidentiality. As far as possible, keeping the identity of employees who file complaints secret can help prevent retaliation or hostility against someone for enforcing his or her right to a discrimination-free workplace.

While you typically won't be able to promise complete confidentiality, employees should know that details about a report of discrimination will only be shared on a need-to-know basis, and will not be generally available to the entire staff.[24]

Keep in mind that employees who complain will feel vulnerable and may fear retribution or harassment for filing a complaint.[25] Try to put yourself in their shoes and be respectful of their feelings and their privacy. Take steps to ensure that they don't become the subject of gossip among employees.

6

Enforce the company policy. There's no value in a written anti-discrimination policy if people are allowed to slide on violations of that policy.

Bending the rules for certain employees constitutes unfair treatment, and can open you up to further liability if the complaint escalates and a lawsuit is filed.[26] Make sure you're holding all employees to the same standard, regardless of their position at the company or your personal relationship with them.

After you've taken whatever action you believe is necessary to resolve the situation, follow up with the complaining employee after a few weeks have passed to find out if the conduct fully ceased or if the employee experienced any blowback as a result of the incident.[27]

7

Consider hiring an attorney. If the complaint involves particularly serious or potentially criminal behavior, or if the person accused of discrimination is an executive or other high-ranking employee, an experienced attorney may be better able to handle the situation for you.[28]

Particularly if the person accused is close to you personally, an attorney can approach the situation objectively and assist you in resolving the situation in a fair manner.

Hiring an attorney also can help you avoid the appearance of impropriety, especially if the employee who filed the complaint has threatened to go to the media or if you've been accused of treating employees unfairly in the past.

8

Cooperate with state and federal agencies. If a situation escalates to the point that an employee reports discrimination to the EEOC or other federal or state agency, provide records and access the agency needs to complete its investigation.

The complaining employee may decide to file a charge with the EEOC – particularly if you take too long to investigate the complaint or if the employee feels his or her complaint won't be handled fairly. The EEOC doesn't require employees to exhaust all options to resolve the situation within the company before filing a charge.[29]

Additionally, the employee must file his or her charge with the EEOC within 180 days of the incident to preserve legal rights, including the ability to file a lawsuit.[30] Regardless of your handling of the situation, the complaining employee may feel it necessary to file the charge simply to keep all options open to resolve the problem.